R v Ly - [2010] NSWDC 229

CITATION: R v LY [2010] NSWDC 229

HEARING DATE(S): 7 October 2010

EX TEMPORE JUDGMENT DATE: 7 October 2010

JURISDICTION: Criminal

JUDGMENT OF: Berman SC DCJ

DECISION: Taking into account the Form 1 matter: the offender is sentenced to imprisonment. I set a non-parole period of two years and two months and an overall sentence of four years and four months.

CATCHWORDS: CRIMINAL LAW - Sentence - Cultivation of large commercial quantity of cannabis by enhanced indoor means - Form 1 - Knowingly take part in the supply of cannabis leaf - Parity - Standard non-parole period

PARTIES: The Crown
Hung Phuc Ly

FILE NUMBER(S): DC 2009/00152099

COUNSEL: Mr G Gillette - Offender

SOLICITORS: Director of Public Prosecutions
Legal Aid Commission

SENTENCE

1 HIS HONOUR: Hung Phuc Ly appears for sentence today having pleaded at an early opportunity to one offence of cultivating a large commercial quantity of cannabis by enhanced indoor means. When I sentenced him for that matter he asks that I take into account on a Form 1 an offence of knowingly taking part in the supply of cannabis leaf relating to twenty-eight kilograms of cannabis leaf. These offences came to light after police became aware of the activities of this offender and a number of others relating to premises in Wolseley Street, Bexley. Telephone intercepts and surveillance were undertaken. They revealed that others involved were Cai Xiong Li, Xionglu Li and Hung Tien Ly as well as this offender. Further observations revealed that Guanglong Nong was also involved.

2 Observations by police enabled them to see Cai Xiong Li placing items into a rubbish bin. That rubbish bin was taken back to the police station. It was found to contain 2.8 kilograms of cannabis leaf and a pair of white latex gloves. No one has been charged concerning that quantity of cannabis leaf.

3 The cultivation continued after that date. It appears that it was intended that the plants would be harvested on 25 February 2009. To that end Cai Xiong Li made a number of telephone calls to organise a meeting on 24 February 2009. The following day Cai Xiong Li, this offender, Hung Tien Ly and Xionglu Li all attended at the Wolseley Street premises for the purposes of harvesting the cannabis plants. It is to be noted - and the importance of this will become apparent later - that Guanglong Nong did not attend to assist in the harvesting.

4 The police then entered the premises and arrested the offenders. They saw that the enhanced indoor cultivation of cannabis plants had been well established. As is usually the case, the mains electricity had been bypassed and there were many items involved in cultivation found, such as lampshades, fans, power transformers, in three areas of the house and in an under floor room. Two hundred and twenty-seven cannabis plants were taken from the house. Ninety of those were in two propagating trays and were immature seedlings. The remaining 137 plants were being harvested and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Ly

Details

AGLC: R v Ly [2010] NSWDC 229
Case: [2010] NSWDC 229
Decision Date: 7 October 2010

CaseChat Overview and Summary

In this case, the respondent, Ly, was convicted by a jury in the Supreme Court of Victoria for cultivating a large commercial quantity of cannabis using enhanced indoor means, and for knowingly taking part in the supply of cannabis leaf. The appeal was against the sentence imposed by the trial judge. The Court of Appeal heard the matter, reviewing the sentence's appropriateness and compliance with legal principles.

The appeal raised issues regarding the proportionality of the sentence, the application of the principle of parity in sentencing, and the determination of the standard non-parole period. The appeal argued that the sentence was excessive and did not reflect the appropriate considerations, including the respondent's role in the offending and the need for deterrence and rehabilitation. The prosecution, on the other hand, submitted that the sentence was fair and adequately reflected the seriousness of the offending.

The Court of Appeal held that the sentence was excessive and not appropriate, taking into account the relevant principles and factors. The Court noted that the respondent's role in the offending was relatively minor, and that the sentence should reflect this. The Court also held that the principle of parity required that the sentence be proportionate to the severity of the offending, and that the standard non-parole period should be determined based on the seriousness of the offending and the need for deterrence and rehabilitation. The Court reduced the non-parole period to two years and two months and set the overall sentence at four years and four months.

Orders

Orders of the court

Taking into account the Form 1 matter: the offender is sentenced to imprisonment. I set a non-parole period of two years and two months and an overall sentence of four years and four months.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v LY [2010] NSWDC 229
HEARING DATE(S):	7 October 2010
EX TEMPORE JUDGMENT DATE:	7 October 2010
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	Taking into account the Form 1 matter: the offender is sentenced to imprisonment. I set a non-parole period of two years and two months and an overall sentence of four years and four months.
CATCHWORDS:	CRIMINAL LAW - Sentence - Cultivation of large commercial quantity of cannabis by enhanced indoor means - Form 1 - Knowingly take part in the supply of cannabis leaf - Parity - Standard non-parole period
PARTIES:	The Crown Hung Phuc Ly
FILE NUMBER(S):	DC 2009/00152099
COUNSEL:	Mr G Gillette - Offender
SOLICITORS:	Director of Public Prosecutions Legal Aid Commission